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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Rotijefco, Inc. ) File No. EB-02-LA-145
) NAL/Acct. No. 200232900005
Licensee of Station KZBN(AM) ) FRN 0001-5306-33
Santa Barbara, California )
FORFEITURE ORDER
Adopted: July 16, 2003 Released: July 18, 2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of five thousand
dollars ($5,000) to Rotijefco, Inc. (``Rotijefco''),
licensee of Station KZBN(AM), Santa Barbara, California,
for willful violation of Section 11.35(a) and (b) of the
Commission's Rules (``Rules'').1 The noted violation
involves Rotijefco's failure to maintain operational
Emergency Alert System (``EAS'') equipment at Station
KZBN, and its failure to log the status of the non-
operational equipment.
2. On July 26, 2002, the Commission's Los Angeles,
California Field Office (``Los Angeles Office'') issued
a Notice of Apparent Liability for Forfeiture (``NAL'')
to Rotijefco for a forfeiture in the amount of eight
thousand dollars ($8,000).2 Rotijefco filed a response
to the NAL on August 26, 2002.
II. BACKGROUND
3. On February 12, 2002, an FCC agent from the Los Angeles
Office inspected Station KZBN. At the time of the
inspection, there was no EAS equipment installed. The
general manager of the station told the agent that the
EAS equipment was non-operational and had been sent out
for repair following the relocation of the station
several months earlier. There were no entries in the
station's logs indicating that EAS equipment had been
installed and operational or that it had been taken out
of service for repair.
4. On July 26, 2002, the Los Angeles Office issued a NAL
for an $8,000 forfeiture to Rotijefco for failing to
maintain operational EAS equipment at KZBN and for
failing to log the status of the non-operational
equipment in willful violation of Section 11.35(a) and
(b). Rotijefco filed a response to the NAL on August
26, 2002. In its response, Rotijefco admits that it was
not in compliance with Section 11.35(a) and (b) at the
time of the inspection because its EAS equipment was
off-site for repairs and its status had not been
properly logged. However, Rotijefco asserts that the
forfeiture should be cancelled or reduced because its
error was ministerial in nature rather than one of
avoidance or neglect. In addition, Rotijefco states
that its record as a broadcaster has been unblemished
prior to this violation. Finally, Rotijefco asserts
that payment of the proposed $8,000 forfeiture would
impose a financial hardship on it and submits its tax
returns for 1999, 2000 and 2001 in support of this
assertion.
III. DISCUSSION
5. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act
of 1934, as amended, (``Act''),3 Section 1.80 of the
Rules,4 and The Commission's Forfeiture Policy Statement
and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087
(1997), recon. denied, 15 FCC Rcd 303 (1999) (``Policy
Statement''). In examining Rotijefco's response,
Section 503(b) of the Act requires that the Commission
take into account the nature, circumstances, extent and
gravity of the violation and, with respect to the
violator, the degree of culpability, any history of
prior offenses, ability to pay, and other such matters
as justice may require.5
6. Section 11.35(a) of the Rules requires broadcast
stations to install and maintain operational EAS
equipment so that monitoring and transmitting functions
are available during the times when the station is in
operation. Section 11.35(b) provides that if EAS
equipment becomes defective, a broadcast station may
operate without the defective equipment pending its
repair or replacement for 60 days, but entries must be
made in the station log showing the date and time the
equipment was removed and restored to service. Section
11.35(c) provides that if repair or replacement of
defective EAS equipment is not completed within 60 days,
an informal request for additional time to repair or
replace the equipment shall be submitted to the District
Director of the nearest FCC Field Office. Rotijefco
admits in its response to the NAL that it did not have
EAS equipment installed at the time of the inspection
and that there were no logs showing when the equipment
had been removed from service. Further, Rotijefco does
not dispute that the EAS equipment was out of operation
for over 60 days without Commission approval.
Accordingly, we conclude that Rotijefco willfully6
violated Section 11.35(a) and (b) of the Rules.
7. Rotijefco argues that the forfeiture should be
cancelled or substantially reduced because the violation was
ministerial in nature. We disagree that the forfeiture should be
canceled. The rules are clear that broadcast stations must
maintain operational EAS equipment, and if the equipment becomes
defective, Commission approval is required if the defective
equipment will not be restored to service within 60 days.
Rotijefco's EAS equipment was out of operation for over 60 days.
Rotijefco offers no explanation why it did not either have the
equipment repaired during that period or seek authorization for
additional time to repair the equipment. The failure to log
removal of defective EAS equipment was part of the broader
violation of not having operational EAS equipment for more than
60 days without Commission approval. Thus, we do not believe
that cancellation on this basis is warranted. We reiterate that
we expect full compliance in this important public safety area.
We believe however, that the proposed forfeiture should be
lowered somewhat based on the fact that, as Rotijefco points out,
it had purchased EAS equipment in the first instance and was in
the process of having the equipment repaired. The fact that
Rotijefco had identified the equipment failure and sent the
equipment out for repair prior to the inspection justifies a
reduction from $8,000 to $6,500.
8. Rotijefco also asserts that its record as a
broadcaster has been unblemished prior to this violation. We
agree that reduction of the forfeiture amount is warranted based
on Rotijefco's past history of compliance with the Commission's
rules. We accordingly reduce the forfeiture to $5,000.
9. Finally, Rotijefco asserts that payment of the
proposed $8,000 forfeiture would impose a financial hardship on
it and submits its tax returns for 1999, 2000 and 2001 in support
of this assertion. The Commission has repeatedly held that a
company's gross revenues are the best indicator of its ability to
pay a forfeiture.7 After considering the financial information
submitted by Rotijefco, we conclude that its gross revenues are
sufficient to enable it to pay a $5,000 forfeiture.
10. We have examined Rotijefco's response to the NAL
pursuant to the statutory factors above, and in conjunction with
the Policy Statement as well. As a result of our review, we
conclude that Rotijefco willfully violated Section 11.35(a) and
(b) of the Rules, but we reduce the forfeiture amount from $8,000
to $5,000.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to
Section 503 of the Act, and Sections 0.111, 0.311 and 1.80(f)(4)
of the Rules,8 Rotijefco, Inc. IS LIABLE FOR A MONETARY
FORFEITURE in the amount of five thousand dollars ($5,000) for
willful violation of Section 11.35(a) and (b) of the Rules.
12. Payment of the forfeiture shall be made in the
manner provided for in Section 1.80 of the Rules within 30 days
of the release of this Order. If the forfeiture is not paid
within the period specified, the case may be referred to the
Department of Justice for collection pursuant to Section 504(a)
of the Act.9 Payment may be made by mailing a check or similar
instrument, payable to the order of the Federal Communications
Commission, to the Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should
reference NAL/Acct. No. 200232900005 and FRN 0001-5306-33.
Requests for full payment under an installment plan should be
sent to: Chief, Revenue and Receivables Operations Group, 445
12th Street, S.W., Washington, D.C. 20554.10
13. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by first class mail and certified mail return
receipt requested to Rotijefco, Inc., 1875 Century Parkway East,
# 2250, Los Angeles, California 90067, and to its counsel, Lee W.
Shubert, Esq., KMZ Rosenman, 1025 Thomas Jefferson Street, N.W.,
East Lobby, Suite 700, Washington, D.C. 20007-5201.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 11.35(a) and (b).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232900005 (Enf. Bur., Los Angeles Office, released July 26,
2002).
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 47 U.S.C. § 503(b)(2)(D).
6 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that ``[t]he term `willful,'
... means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act or any rule or regulation of the Commission authorized
by this Act ....'' See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
7 See Long Distance Direct, Inc., 15 FCC Rcd 3297, 3305
(2000); PJB Communications of Virginia, Inc., 7 FCC Rcd 2088,
2089 (1991). The Commission has also stated that if gross
revenues are sufficiently great, the existence of operating
losses does not by itself mean that a company cannot afford to
pay a forfeiture. Id.
8 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
9 47 U.S.C. § 504(a).
10 See 47 C.F.R. § 1.1914.